[00:00:00] Speaker 02:
Case number 20-5106 et al, MMV et al, a balance versus William P. Barr, Attorney General of the United States et al.

[00:00:10] Speaker 02:
Ms.

[00:00:10] Speaker 02:
Heller for the balance, Mr. Ruben for the appellee.

[00:00:24] Speaker 01:
Ms.

[00:00:24] Speaker 01:
Heller, please proceed when you're ready.

[00:00:26] Speaker 01:
Thank you.

[00:00:27] Speaker 02:
Good morning.

[00:00:28] Speaker 02:
May it please the court?

[00:00:30] Speaker 02:
Judicial review of executive action will not be cut off unless there is persuasive reason to believe that such is the purpose of Congress.

[00:00:38] Speaker 02:
And that comes from Justice Clarence Thomas' dissent into labor of the Illinois Council on Long-Term Care, which was quoted in this court's recent decision in Make the Road New York Versus Bull.

[00:00:50] Speaker 02:
And it's a principle that's been reiterated by the Supreme Court on numerous occasions.

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Here, the district court erred in holding the eight USC section

[00:00:59] Speaker 02:
one two five two eight two eight four cut off the court's jurisdiction to review unwritten and undisclosed policies and procedures because there was no clear and convincing evidence that this was congress's intent in fact the provision cited by the district court in support of its conclusion proves the opposite in the decision the district court refers to section one five one two five two eight three eight two

[00:01:26] Speaker 02:
And this provision provides parameters by which the court may review written policies and procedures.

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It's not logical that Congress would provide judicial review of only written policies and procedures, but not of unwritten policies and procedures, because if that were the case, it would make E3A2 toothless.

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Why would the executive branch ever write it down and formally adopt the policy and procedure if it knew that it could evade judicial review?

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if the judge didn't write it down.

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It wouldn't.

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And any administration could decide that it disagreed with something in the Immigration and Nationality Act.

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And know that it could avoid a judicial review and undercut the act by simply not writing it down.

[00:02:13] Speaker 02:
And for talking.

[00:02:14] Speaker 04:
Can I ask you a question about this piece of your argument?

[00:02:16] Speaker 04:
So I understand the logic of your submission about written versus unwritten.

[00:02:22] Speaker 04:
But if we buy your argument, as I understand the way it's framed,

[00:02:26] Speaker 04:
It would mean that unwritten, what you're calling an unwritten policy just doesn't come in, come within the fold of this provision at all.

[00:02:35] Speaker 04:
And so the consequence of that would mean, I think that for example, under E3, there's limitations on relief.

[00:02:41] Speaker 04:
So, uh, yeah, the court can oppose declaratory or injunctive relief of things of that nature.

[00:02:47] Speaker 04:
But then if it were unwritten, those limitations wouldn't even apply.

[00:02:50] Speaker 04:
And that seems kind of odd too.

[00:02:52] Speaker 04:
that those limitations wouldn't kick in, even though Congress specifically said they would kick in as to written policies?

[00:02:57] Speaker 02:
Well, understood, but it seems that it could be that Congress didn't imagine the executive branch would start trying to undercut the Immigration and Nationality Act by making unwritten policies and procedures.

[00:03:08] Speaker 02:
But certainly E3A2 talks about guidelines, talks about parameters by which for the written decisions that one could only determine from a written decision, such as 60 days after implementation.

[00:03:22] Speaker 02:
So while I take your point, Your Honor, and take Judge's point that it seems a little odd, we have to look at the clear and convincing evidence of what Congress intended.

[00:03:32] Speaker 02:
And if you look at the statute and the poll, as well as 1225 and what 1225 is intended to provide, it just doesn't make any sense that Congress would say, okay, we're going to review what's written down, but not what's unwritten.

[00:03:48] Speaker 02:
I mean, in fact, unwritten policies and procedures

[00:03:51] Speaker 02:
are rife with opportunity for abuse and undercutting the law.

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So it would seem that based upon logic and just the fact that the statute isn't clear, 1252A2A4 couldn't mean to talk about written policies and procedures.

[00:04:10] Speaker 02:
It couldn't undercut judicial review of them.

[00:04:13] Speaker 02:
For example, if we look at 1225, which is the expedited removal procedure,

[00:04:21] Speaker 02:
That provides channeling of certain claims by noncitizens.

[00:04:27] Speaker 02:
Then 1252, oh, sorry, 1252 tries to work with the expedited removal procedure to panel the claims of noncitizens.

[00:04:36] Speaker 02:
There's no provision in 1252 for the review of unwritten policies and procedures.

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And there is safe law on this that talks about how if it's not in the channeling provision,

[00:04:49] Speaker 02:
There can't be evidence that Congress intended not to have useful review of an administrative action.

[00:04:56] Speaker 02:
I think we can also look at the plain language of 1252A2A4, the word adopt.

[00:05:06] Speaker 02:
Now, the word adopt can have different meanings.

[00:05:08] Speaker 02:
I think it's fair to say that the dictionary has definitions of the word adopt.

[00:05:12] Speaker 02:
However, in this context where we look at it and we look at the statute as a whole,

[00:05:16] Speaker 02:
it would seem to be that Congress could not have meant adoption of unwritten policies and procedures.

[00:05:22] Speaker 02:
And they're supporting that in the case law.

[00:05:24] Speaker 02:
In fact, I think probably the only case that's ever addressed this specific provision with respect to unwritten policies and procedures is to be the ICE from the Western District of Washington, which we cite in our case.

[00:05:37] Speaker 02:
And in that case, the court squarely addresses and rejects the government's argument that that section bar judicial review because in that case,

[00:05:46] Speaker 02:
They said, look, the government hasn't adopted a formal policy and procedure of prolonged detention.

[00:05:51] Speaker 02:
Therefore, it can't fall under the judicial stripping provisions of this section.

[00:05:58] Speaker 04:
So, I just want to make sure I'm following your argument.

[00:06:01] Speaker 04:
So, if it's A2A4, if adopted, can't by definition encompass unwritten policies,

[00:06:11] Speaker 04:
And what you're saying is there's uninhibited judicial review of unwritten policies, but there's cabin judicial review of written policies.

[00:06:20] Speaker 02:
I think that would be the fair conclusion.

[00:06:26] Speaker 04:
It seems hard to imagine that's what Congress intended, that they wanted to make sure that written policies were only reviewed through a carefully calibrated cabin regime, but to the extent there's an unwritten policy,

[00:06:42] Speaker 04:
the careful cabining that Congress implemented with written policies just doesn't apply and it's open season.

[00:06:48] Speaker 02:
Well, I think it would be further concerning that the Congress had intended to, or a fair read that Congress would have, it doesn't make sense that Congress would have intended for review of something that's written down, but then allowed the executive branch to undercut any act, well not in this case, it's the immigration and nationality act,

[00:07:09] Speaker 02:
It doesn't make sense that it would allow the executive branch unfettered decision to undercut Congress and intent of the INA.

[00:07:17] Speaker 02:
And an administration could come in and say, you know what, we want, we don't want credible fear interviews.

[00:07:22] Speaker 02:
Let's just rubber stamp every non-citizen who comes in and say they have credible fear.

[00:07:26] Speaker 02:
They don't write it down.

[00:07:27] Speaker 02:
It's not subject to the authority.

[00:07:29] Speaker 02:
But I think we'd all agree that that is antithetical versus the direct violations in the Immigration and Nationality Act.

[00:07:36] Speaker 02:
So I understand, Chief Judge, your concern, but I think it's even more concerning to read that there is, I think that there's better, it's a better analysis that there is no clear and convincing evidence that Congress intended to cut off review of unwritten policies and procedures.

[00:07:59] Speaker 02:
So I just want to go back to one thing I said when I was talking about reading section 1225 with 1252.

[00:08:06] Speaker 02:
1252.

[00:08:09] Speaker 02:
And that is that I'd also like to just refer the court to Gimbor Zeta v. Duke, which we cited in our brief.

[00:08:18] Speaker 02:
And in that case, the court cites DC Circuit Court cases, talking about how if there is no other avenue for review in the administrative process, then the court has to conclude that it wasn't that Congress didn't need to cut off judicial review.

[00:08:34] Speaker 02:
And in that case, the court rejected an argument that Section 1252 barred review of plaintiffs' constitutional and statutory claims challenging the lawfulness of a secret program that was actually written down, but it was a secret program.

[00:08:50] Speaker 02:
But I'd like to go on to the secondary argument.

[00:08:53] Speaker 02:
If the court disagrees with this one, the court can also conclude that both the unwritten and the written actions weren't adopted.

[00:09:03] Speaker 02:
And that's because it couldn't have been adopted because the acting director of USCIS at the time, defendant Kenneth Puccinelli, has been found that he is not a lawfully appointed USCIS director.

[00:09:19] Speaker 02:
And that's in LMM versus Puccinelli, which we cite in our brief.

[00:09:25] Speaker 02:
And in that case, the district court concluded that he had not been lawfully appointed.

[00:09:29] Speaker 02:
And that case was appealed by the defendant

[00:09:32] Speaker 02:
But the appeal was withdrawn.

[00:09:34] Speaker 02:
I believe it was a few weeks ago.

[00:09:35] Speaker 02:
We submitted a 28-J letter on August 18 of this year.

[00:09:40] Speaker 02:
So that is now the law.

[00:09:41] Speaker 02:
Now, in LMM, the court refers to this court's decision in SW General Inc.

[00:09:48] Speaker 02:
versus NLRB.

[00:09:50] Speaker 02:
And Chief Judge Srinivasan, you were on that decision.

[00:09:54] Speaker 02:
And in that case, the court recognized that the FDRA renders any action taken in violation of the statute void of an issue.

[00:10:02] Speaker 02:
and actually cited that provision of the SBNRA, which said that if a person who has not been morally appointed takes an action, that action has no force and effect and cannot be ratified.

[00:10:16] Speaker 02:
Thus, if defendant Cuccinelli didn't have the authority to implement either the written or unwritten challenge action, then they couldn't have been adopted under the statute.

[00:10:27] Speaker 02:
And here's where the district court erred.

[00:10:29] Speaker 02:
The district court erred because it concluded that it couldn't even address whether or not the unwritten or written policies and procedures had been adopted because it didn't have jurisdiction.

[00:10:40] Speaker 02:
But that's putting the cart before the force.

[00:10:42] Speaker 02:
Our claim is that, well, no, you have jurisdiction because they have not been adopted.

[00:10:47] Speaker 02:
Thus, this court's restrict of jurisdiction under 1252A2A4.

[00:10:54] Speaker 02:
And this court could say, you know what?

[00:10:57] Speaker 02:
We're not going to render a decision on whether or not these actions were lawfully adopted, but remanded back to the district court to actually address in the first instance whether or not the challenged actions, both written and unwritten, were lawfully adopted.

[00:11:11] Speaker 02:
And if they weren't, the court has jurisdiction.

[00:11:14] Speaker 02:
And then if the district court decides that they were, we may be back here now.

[00:11:18] Speaker 02:
Or we may be back here even if she decides in favor of the plaintiff.

[00:11:22] Speaker 02:
But that's another

[00:11:23] Speaker 02:
basis upon which this court can reverse the district court's decision.

[00:11:28] Speaker 02:
And if the court reverses the district court's decision on either one of these, either that you can't adopt unwritten policies and procedures, or that because they were promulgated under Tennessee Cheneley, they could not have been adopted and therefore subject to judicial review, then all of the plaintiffs in the second amended complaint get added back.

[00:11:49] Speaker 02:
And this court should also deny the branch of the district court's decision

[00:11:53] Speaker 02:
It denies the motions for joiner because then everybody just gets folded back in.

[00:11:58] Speaker 02:
And that's a very important point to make here for our client.

[00:12:06] Speaker 02:
I'd like to go on, I guess, in the few little bit of time I have left unless somebody has questions before my.

[00:12:12] Speaker 00:
I do.

[00:12:13] Speaker 02:
Yes.

[00:12:14] Speaker 00:
And your point about the.

[00:12:20] Speaker 00:
Doesn't that.

[00:12:22] Speaker 00:
point depends, in turn, on your first point, which you treated as an alternative.

[00:12:28] Speaker 00:
But I'm wondering whether it doesn't actually depend upon accepting the first point about what it means to be adopted.

[00:12:37] Speaker 01:
Well, yes.

[00:12:39] Speaker 02:
If this court determines that an unwritten policy or procedure cannot be adopted, then it would not reach that point with respect to whether defendant Puccinelli could have adopted the unwritten policy.

[00:12:51] Speaker 02:
That's right.

[00:12:51] Speaker 00:
So if you don't win on the first point, the second really is unavailable.

[00:12:56] Speaker 00:
And if you do win on the first point, the second is unnecessary.

[00:13:01] Speaker 02:
If we went on the first point, the second is unnecessary with respect to the unwritten policies and procedures.

[00:13:06] Speaker 02:
Yes.

[00:13:07] Speaker 02:
If we went on the second point, if the court finds that policies and procedures can be adopted or unwritten policies and procedures can be adopted, we went on the second point because

[00:13:18] Speaker 02:
Ken Puccinelli couldn't have, Mr. Puccinelli couldn't have adopted them because he wasn't lawfully appointed.

[00:13:24] Speaker 02:
But that also, on the Ken Puccinelli point, it's both been written, the three policies and procedures that were found to be written.

[00:13:33] Speaker 02:
So either way, some of those claims go back to the district court and all of the plaintiffs should go back to the district court.

[00:13:39] Speaker 00:
Well, if that's all there were to, there's more.

[00:13:46] Speaker 00:
But wait, there's more.

[00:13:47] Speaker 01:
Okay.

[00:13:48] Speaker 01:
Do you have another question?

[00:13:51] Speaker 01:
We'll get to that.

[00:13:53] Speaker 01:
Okay.

[00:13:56] Speaker 02:
Um, I, I think that I'm running into Maribeth all the time.

[00:13:58] Speaker 02:
I, if the court has, I'm happy to keep speaking, but if the court has any other questions, if not.

[00:14:03] Speaker 00:
All right.

[00:14:04] Speaker 00:
So you said there were three written policies?

[00:14:07] Speaker 02:
Yes.

[00:14:09] Speaker 00:
Um, all right.

[00:14:11] Speaker 00:
I'm seeing two.

[00:14:13] Speaker 00:
Let's see what I'm missing.

[00:14:15] Speaker 00:
I've got the, um,

[00:14:17] Speaker 00:
Proceeding without required staffing, training, and guidelines.

[00:14:21] Speaker ?:
Correct.

[00:14:22] Speaker 00:
That's your characterization.

[00:14:24] Speaker 00:
And instituting mandatory concurrence review by the fraud detection unit.

[00:14:30] Speaker 00:
That's still in the district court.

[00:14:35] Speaker 01:
Yes, that is.

[00:14:36] Speaker 00:
What is the third one?

[00:14:37] Speaker 00:
What was your saying about three in this court?

[00:14:39] Speaker 02:
The other one is number six.

[00:14:46] Speaker 02:
that interrogations proceeded without, wait, no, I apologize.

[00:14:52] Speaker 02:
It's number one, Your Honor, I apologize.

[00:14:55] Speaker 02:
And number one is that officials at the border failed to orient non-citizens as required to their legal rights.

[00:15:05] Speaker 02:
And that was based upon an M-444 form that became unlawful and incorrect after the transit ban was implemented.

[00:15:16] Speaker 02:
because that form didn't provide an updated guidance on what standard immigrants had to meet in order to have a positive credible fear finding.

[00:15:27] Speaker 00:
But to the point here, you're saying that was a written balance.

[00:15:31] Speaker 02:
Yes.

[00:15:32] Speaker 02:
Because it was in a form that was correct until the transit ban was implemented.

[00:15:38] Speaker 02:
And then when the transit ban was implemented, the form became unlawful because it was incorrect.

[00:15:43] Speaker 02:
and the government didn't update it and continue to use it.

[00:15:47] Speaker 00:
So wait a minute.

[00:15:48] Speaker 00:
So they didn't update it.

[00:15:50] Speaker 00:
So they didn't do anything in writing.

[00:15:51] Speaker 00:
They just left, according to your account, they just left a writing in place after they've become overtaken by events and therefore mislead.

[00:16:06] Speaker 01:
Yeah.

[00:16:08] Speaker 00:
You're calling that a written policy.

[00:16:10] Speaker 01:
Yeah.

[00:16:11] Speaker 02:
It was a written policy that was lawful until the time that it was not, which was after the transit ban was implemented.

[00:16:17] Speaker 00:
Is there some written policy that says continue using this outdated form?

[00:16:23] Speaker 02:
We don't know because there was very limited discovery produced, but to our knowledge, we don't have knowledge one way or the other.

[00:16:32] Speaker 00:
We do know that you're not alleging there was a written directive to keep using the outdated.

[00:16:40] Speaker 02:
Um, no, I don't think so.

[00:16:44] Speaker 02:
I can go back and look at the complaint, but based upon my recollection, you did not election on state written form.

[00:16:49] Speaker 00:
I think that seems to be like an unwritten situation that you described, but okay.

[00:16:56] Speaker 01:
I got your understanding.

[00:17:01] Speaker 00:
Okay.

[00:17:02] Speaker 04:
Thank you, Ms.

[00:17:02] Speaker 04:
Heller.

[00:17:02] Speaker 04:
Unless my colleagues have further questions, we'll hear from the government and we'll give you some rebuttal time.

[00:17:11] Speaker 01:
Mister ready.

[00:17:13] Speaker 01:
Thank you.

[00:17:13] Speaker 01:
Good morning, your honors.

[00:17:14] Speaker 03:
As you've been for the defendant.

[00:17:17] Speaker 03:
There's a lot of paper and a lot of procedural history in this case.

[00:17:22] Speaker 03:
This is really boils down to two basic.

[00:17:26] Speaker 03:
Premises both down by the district court and both that should be affirmed on appeal.

[00:17:31] Speaker 03:
One legal one factual and the first which which you've been discussing with Miss Heller is.

[00:17:36] Speaker 03:
Does this statute which?

[00:17:38] Speaker 03:
severely circumscribes, for lack of a better word, judicial review of anything having anything to do with the expedited removal statute.

[00:17:47] Speaker 03:
Does it require a written policy guideline, et cetera, under 1252E3, having the answer, not just as a district court found, but as this court found in American immigration lawyers' affairs, and as every district court to address a similar issue since, relying on ALA has found that that

[00:18:05] Speaker 03:
That's the answer.

[00:18:06] Speaker 03:
The answer is yes, it must be reduced to writing.

[00:18:08] Speaker 03:
If it's not reduced to writing in some sort of formal document, it's something different.

[00:18:13] Speaker 03:
It's been as applied challenge.

[00:18:15] Speaker 03:
It can be raised in a very, very limited review provision 1252E2.

[00:18:20] Speaker 03:
It doesn't really allow for these sorts of claims, or it's a failure to follow.

[00:18:25] Speaker 04:
What do you do with the situation?

[00:18:26] Speaker 04:
What do you do with the situation that Ms.

[00:18:28] Speaker 04:
Heller was looking at in her argument?

[00:18:30] Speaker 04:
So suppose you have

[00:18:33] Speaker 04:
I'm not saying that this would actually happen.

[00:18:35] Speaker 04:
I'm not saying that this has happened.

[00:18:37] Speaker 04:
I'm just giving you a hypothetical.

[00:18:38] Speaker 04:
But suppose you have a situation in which agency officials say, you know, I want to make sure that everybody, all officers in the field undertake review in the following circumscribed way.

[00:18:52] Speaker 04:
But if I put it in writing, it's going to be subject to judicial review.

[00:18:56] Speaker 04:
So this is just an edict that I would like, and you do it by video conference.

[00:19:00] Speaker 04:
You just disseminate it and say,

[00:19:02] Speaker 04:
I would like to make sure that everybody operates in the following way.

[00:19:05] Speaker 04:
Everybody, this is a generally applicable policy, but I'm not going to reduce it to writing.

[00:19:10] Speaker 04:
And if you don't operate in this way, then you're going to be in trouble with me.

[00:19:15] Speaker 04:
So I guess the upshot of your position is that's not subject to judicial review, even though it is a policy.

[00:19:21] Speaker 04:
There is such a thing as an unwritten policy, I think you would admit.

[00:19:25] Speaker 04:
And so if it's an unwritten policy of that variety, it's just not subject to judicial review.

[00:19:30] Speaker 03:
Well, I think I have a couple of responses to that, Your Honor.

[00:19:32] Speaker 03:
I would first resist the premise a little bit.

[00:19:35] Speaker 03:
I take the point of the hypothetical, and I want to engage with the hypothetical, but that's definitely not what it's presented in this case.

[00:19:40] Speaker 04:
We have... I baked that in.

[00:19:42] Speaker 04:
So I know that it's not... I know that your position is it's not what's presented in this case.

[00:19:46] Speaker 04:
I get that.

[00:19:46] Speaker 04:
I'm just trying to understand the implications of your argument.

[00:19:50] Speaker 04:
And let's assume, a hypothetical that I know you would never assume, and I totally understand that.

[00:19:54] Speaker 04:
I work in the government.

[00:19:55] Speaker 04:
I understand what you're saying, but let's just...

[00:19:58] Speaker 04:
For purposes of understanding the parameters of the government's submission about the scope of judicial review, I just want to make sure that I'm properly understanding it, that in that hypothetical where somebody says purely for the purposes of avoiding judicial review, I want to disseminate this policy orally.

[00:20:12] Speaker 03:
Taking your hypothetical on a space with the caveats, that may be a closer question in certain circumstances.

[00:20:22] Speaker 03:
If there's evidence, let's say,

[00:20:24] Speaker 03:
Someone is an extreme example.

[00:20:27] Speaker 03:
Someone says at the credible fair interview to an individual, you know, I've been told we have a policy that we don't accept anyone from Asia anymore.

[00:20:35] Speaker 03:
So denied that that would be strong circumstantial evidence that maybe there is something going on there that could be further looked into.

[00:20:43] Speaker 03:
And then maybe, maybe there's some in this new case, there's somewhere to look at the word written and say, well, written doesn't just mean written in this limited extreme.

[00:20:52] Speaker 03:
Circumstance can I just stop you right there?

[00:20:55] Speaker 04:
Why if if if we're assuming that it's unwritten.

[00:21:00] Speaker 04:
And you're under totally understandably relying on the word written and is the idea is the way you read the statute that it's limited written policies, unless it's a an unwritten policy.

[00:21:10] Speaker 04:
It's in fact a policy.

[00:21:12] Speaker 03:
No, no, your honor.

[00:21:12] Speaker 03:
I think you'd have a sort of different, you have a different claim there.

[00:21:15] Speaker 03:
You, you, this is sort of like, I refer to court at the rescission, for example, where it had a footnote where it said, look, there's no review of anything raised in this.

[00:21:22] Speaker 03:
And this is the recent Supreme court case on 1252 to the sister provision.

[00:21:26] Speaker 03:
There's no different view of anything, no constitutional claims, no legal claims, nothing.

[00:21:30] Speaker 03:
And the allegation in that case was, well, you didn't follow this policy or you misapplied the standard.

[00:21:34] Speaker 03:
Like a lot of similar claims actually that we're seeing in this case, the court said, sorry, it's barred period written or unwritten.

[00:21:41] Speaker 03:
It doesn't matter.

[00:21:41] Speaker 03:
A different provision, of course, doesn't use the word written, but it has a footnote that says, look, if we have an extreme example, this is where Justice Alito is responding to Justice Brian Currant and the concerns to create a horrible footnote, I'll call it.

[00:21:52] Speaker 03:
Someone is discriminating against someone on the basis of religion.

[00:21:56] Speaker 03:
The example there was Judaism.

[00:21:58] Speaker 03:
Well, that might be an example of you have a claim not that

[00:22:02] Speaker 03:
Not that this jurisdiction to review under the statute is written, but that the statute is written by on its face by like that constitutional provision in that circumstance.

[00:22:11] Speaker 03:
And of course, there will be other issues that be the 60 day time bar.

[00:22:15] Speaker 03:
It with respect to that sort of claim, but that would be the way that there is potentially an avenue to challenge that extreme policy you've identified in your hypothetical or I've identified in responding to your hypothetical.

[00:22:25] Speaker 03:
But here, also in ALA, in district court decisions like LMN, the gender, which we cite in our briefs, we had all these same claims.

[00:22:34] Speaker 03:
Look, officers are going off the permitted scope of their discretion.

[00:22:40] Speaker 03:
They're applying things ad hoc.

[00:22:42] Speaker 03:
Therefore, there must be a secret policy, or therefore, there must be a failure to act consistently with written policy.

[00:22:49] Speaker 03:
And this court, I just.

[00:22:51] Speaker 04:
So just so I understand, then, if we put aside the constitutional claim,

[00:22:55] Speaker 04:
Let's say it's equal protection based on the policy itself.

[00:22:59] Speaker 04:
In your view, and I totally understand this as you're reading in the statute, I just want to make sure that it is, if we put to one side an equal protection claim based on the parameters of the particular policy at issue, if the government decides to adopt a policy but not reduce it to writing precisely to avoid judicial review, that works.

[00:23:19] Speaker 04:
That's actually a way to avoid judicial review is to make sure the policy isn't written down.

[00:23:24] Speaker 03:
I think the clear factual answer and the answer that I need to say in defending the statute is yes, correct.

[00:23:30] Speaker 03:
If that were in fact what the government were doing and there was sufficient evidence to show that the government were doing that, that statute is written with bar review.

[00:23:37] Speaker 03:
But again, I know it's based into the hypotheticals, not the case here at all.

[00:23:42] Speaker 03:
The plaintiffs had ample opportunity through anecdotal evidence to have declarations from numerous attorneys on the ground who are very well-versed in how these credit books are interviewed.

[00:23:53] Speaker 03:
individual who runs the asylum, our officer who runs the asylum division, two declarations, so somewhere around 300 pages of declarations and exhibits and so forth.

[00:24:03] Speaker 03:
I think the court rightly found, looking at each and every one of the policies, at least that Judge Jackson found were not written, numbers 3, 4, 5, 7, 8, 10, and 11, at best, all I see here, and the plaintiff had an opportunity to show me otherwise, are

[00:24:18] Speaker 03:
as applied ad hoc instances that are not subject to judicial review.

[00:24:22] Speaker 03:
And if they wanted to bring a sort of as applied challenge, the way they would do that is simply they would use the vehicle that was rejected in the rescission, other than that footnote I just mentioned as the extreme sort of constitutional reservation clause.

[00:24:35] Speaker 03:
But here, I didn't hear Ms.

[00:24:37] Speaker 03:
Heller discuss this, but even if she's putting aside the legal questions under this court's clear precedent, there's got to be clear error.

[00:24:47] Speaker 03:
Got to be something more than, well, different people could disagree.

[00:24:50] Speaker 03:
Maybe if I looked at this evidence, I would have found something slightly different.

[00:24:54] Speaker 03:
The judge's decision below is 44 pages.

[00:24:57] Speaker 03:
It's extensive.

[00:24:58] Speaker 03:
It looks through all the relevant evidence.

[00:25:01] Speaker 03:
And I see no basis in the record.

[00:25:03] Speaker 03:
I don't see any basis in Blankett's papers to find clear error.

[00:25:08] Speaker 03:
Uh, but anyway, to the point I'm written and as a person applied, Ayla says that, um, I know the seventh circuit has echoed Ayla on that.

[00:25:15] Speaker 03:
Okay.

[00:25:16] Speaker 03:
I'm for an Americanization of, uh, lawyers affairs here, uh, unwritten or as applied after review.

[00:25:22] Speaker 03:
Of course they've identified the concern that you raised your judge.

[00:25:25] Speaker 03:
And this is just not that case.

[00:25:27] Speaker 03:
I don't, we haven't seen that case yet.

[00:25:29] Speaker 03:
Every court below just mosque has had a case.

[00:25:32] Speaker 03:
Uh, that's meta has had a case.

[00:25:34] Speaker 03:
Uh, judge Cooper's had a case.

[00:25:35] Speaker 03:
They've all found.

[00:25:36] Speaker 03:
need a writing at least I'm back to one of those alleged here.

[00:25:40] Speaker 03:
Uh, turning for a minute to the, uh, the time bar issue.

[00:25:44] Speaker 03:
Uh, I mean, there are potentially, it's not clear, uh, the government admitted below that all of these, uh, as framed by plaintiffs, uh, are not actual policies that exist, but we identified our declare and identified repotential policies, which, uh, the district court referred to as challenge actions one, six and two.

[00:26:04] Speaker 03:
I'm going out of order there for a reason.

[00:26:07] Speaker 03:
Challenge Actions 1 and 6 actually were found in LMM, the case before Judge Moss, as Heather just referred to.

[00:26:14] Speaker 03:
As to Challenge Action Number 1, Judge Moss found it was an unwritten policy.

[00:26:17] Speaker 03:
This is the former.

[00:26:18] Speaker 03:
It was the same claim there that they stopped doing in-person orientation, and there should have been some updates in light of the transit rule.

[00:26:25] Speaker 03:
They're actually separate policies.

[00:26:26] Speaker 03:
They're not related to each other.

[00:26:27] Speaker 03:
And Judge Moss actually found that policy to be unwritten and just dismissive, with all the same concerns.

[00:26:34] Speaker 03:
arguments that have to appear on that floor.

[00:26:36] Speaker 03:
Uh, contact number six was the memo that was set aside in LMM.

[00:26:40] Speaker 03:
That's, uh, the Chanel's direction that, uh, consultation time for individuals and credible fear interview would be reduced from 48 to 24 hours.

[00:26:50] Speaker 03:
That's set aside.

[00:26:50] Speaker 03:
And I believe the district court here identified this.

[00:26:54] Speaker 03:
I just say that not challenging that.

[00:26:56] Speaker 03:
So they sort of waived that claim anyway.

[00:26:57] Speaker 03:
So they must be referring to some others.

[00:27:00] Speaker 03:
Also patient policy, we didn't identify one or declare such a different policy.

[00:27:05] Speaker 04:
But in any event, can I ask you about about challenge action nine, because that's the one that everybody agrees, at least at some point, this is still pending in the district court.

[00:27:15] Speaker 04:
And my question is about the time limit period and whether it's jurisdictional, because as I understand the landscape on this issue,

[00:27:25] Speaker 04:
If the time limit is non-jurisdictional, then there's at least a possibility of equitable tolling.

[00:27:31] Speaker 04:
And your submission is that there's no possibility of equitable tolling because the time limit is jurisdictional.

[00:27:36] Speaker 04:
And I just want to ask you about that because, as you well know, on the Supreme Court's decisions in this area, the basic understanding is that time limits are not jurisdictional unless there's a clear statement that indicates that they are jurisdictional.

[00:27:53] Speaker 04:
And I'm wondering if we have the requisite

[00:27:55] Speaker 04:
clear statement here, even though the time limit at issue is embedded within what's otherwise a jurisdictional limiting set of provisions, we still have decisions and the Supreme Court does too, that even if you have provisions that deal with time limits and provisions that deal with jurisdiction that are within the same set of provisions or even within the same sentence, that's the buyer's decision from our court.

[00:28:24] Speaker 04:
That doesn't necessarily mean that the time limit is jurisdictional.

[00:28:28] Speaker 04:
It can still be non-jurisdictional unless there's a condition.

[00:28:32] Speaker 04:
And so I'm wondering whether this is a case like Myers in which even though there's proximity between jurisdiction and time limit, that the time limit nonetheless is non-jurisdictional.

[00:28:45] Speaker 03:
Just a couple of responses, first precedent and then actually first principles to respond to your question.

[00:28:51] Speaker 03:
But this exact claim was raised in ALF.

[00:28:53] Speaker 03:
and affirmed in full on that point by the court.

[00:28:56] Speaker 03:
And I don't think there's any argument that AILA decision has been so eroded by subsequent precedent from the Supreme Court.

[00:29:04] Speaker 03:
I certainly didn't see plaintiffs make this argument, that AILA can just be ignored, particularly by district courts.

[00:29:09] Speaker 03:
Right.

[00:29:09] Speaker 04:
But I mean, in AILA, and I'll just ask you to put it to one side anyway, just for arguments purposes.

[00:29:14] Speaker 04:
But I appreciate the point.

[00:29:15] Speaker 04:
We have to be obviously cognizant of our precedent.

[00:29:18] Speaker 04:
I mean, the court did, our court did devote one sentence to this complex of issues and says,

[00:29:23] Speaker 04:
that it's affirming substantially for the reasons stated by the district court.

[00:29:26] Speaker 04:
So there could be a question as to whether that's a holding as to every particular that the district court reached.

[00:29:32] Speaker 04:
But in any event, if I could just ask you for these purposes, just to put it to one side, understanding full well that there's an argument about precedent there.

[00:29:40] Speaker 04:
Just on first instance, if you put it.

[00:29:42] Speaker 03:
Absolutely.

[00:29:43] Speaker 03:
I would like to add that briefly a little bit, but having it expanded here.

[00:29:47] Speaker 03:
There's a couple of Supreme Court decisions that I think are relevant in this space, quite fun, 575-UX-412.

[00:29:53] Speaker 03:
And our box 2006 is both dealing with this issue.

[00:29:56] Speaker 03:
And they, to some extent, distinguish between, for example, clearly jurisdictional time limitations and then court created or claim processing limitations.

[00:30:07] Speaker 03:
And this isn't a claim processing limitation.

[00:30:09] Speaker 03:
Plaintiffs don't argue that it is.

[00:30:10] Speaker 03:
So I think that line of those cases is not relevant here.

[00:30:13] Speaker 03:
What's relevant is, is it expressly conditioned?

[00:30:15] Speaker 03:
Can we take a look at the statute as written and find it to be conditioned?

[00:30:17] Speaker 03:
I think you absolutely can.

[00:30:19] Speaker 03:
You take a look at 1262A2A, which is the more general

[00:30:22] Speaker 03:
There shall be no jurisdiction to review unless XYZ statute.

[00:30:26] Speaker 03:
And then it cross-references 1252E in the relevant subsections of that statute that are issued here, 1252A284, and we can also 1252A281, and then it goes to 1252E3 and says there shall be, the first statute that you mentioned earlier, Chief Judge, 1252A1, there should be no jurisdiction to issue any sort of relief other than as permitted in a subsequent provision.

[00:30:46] Speaker 03:
And then I have a second, jurisdiction conditioned if the conditions that follow are satisfied.

[00:30:51] Speaker 03:
Then you have the issue here, particularly three events that limited judicial review of regulations, written policies, et cetera.

[00:30:59] Speaker 03:
But only if they are filed within 60 days in the District Court of Judiciary of Columbia.

[00:31:04] Speaker 03:
So we would submit that that return of jurisdiction is expressly conditioned on it being done within 60 days.

[00:31:12] Speaker 03:
And then there's a good reason for why Congress would want to make that jurisdictional and not allow for polling.

[00:31:17] Speaker 03:
The whole purpose.

[00:31:18] Speaker 04:
But where is but only if?

[00:31:20] Speaker 04:
You said, but only if I mean, is that just your paraphrasing or is that actually?

[00:31:23] Speaker 04:
I didn't, I'm not quoting, but only if I'm saying pretty important because in Myers, for example, that exact word if was highlighted by our decision as missing from the statute at issue in Myers and understanding that if the word if wasn't the statute, that would obviously be expressly conditional.

[00:31:45] Speaker 03:
And so the question is, I think there's a good thing on the same way.

[00:31:50] Speaker 03:
I'm sorry, I didn't interrupt you.

[00:31:51] Speaker 03:
There's must be filed within.

[00:31:53] Speaker 03:
And that's there in 1252B, must be filed no later than.

[00:31:56] Speaker 03:
That's not if and only if, but that must be.

[00:31:59] Speaker 04:
But that must be is mandatory.

[00:32:02] Speaker 04:
And the one thing we know from the Supreme Court's decisions and Myers is that nearly because of statute of limitations is mandatory doesn't mean that it's jurisdictional.

[00:32:10] Speaker 04:
That's just run of the mill fare for statute of limits.

[00:32:13] Speaker 04:
So I think where you were going was that there one way to show that it's jurisdictional is to show

[00:32:19] Speaker 04:
that the statute of limits is conditional.

[00:32:21] Speaker 04:
And I'm just wondering if this statute does that.

[00:32:26] Speaker 03:
I feel I have my time to answer this question.

[00:32:29] Speaker 03:
We believe so, yes, because in addition to what I've just said, again, the threshold, the general opening statute is there is no jurisdiction period full stop, unless you satisfy these conditions.

[00:32:41] Speaker 03:
So that's jurisdictional.

[00:32:42] Speaker 03:
You then have the first statute in the subsection saying you can only issue any sort of relief if the following

[00:32:48] Speaker 03:
Conditions are satisfied condition doesn't use the word condition.

[00:32:51] Speaker 03:
I'll give you I'd agree with that.

[00:32:53] Speaker 03:
But as structured and read naturally well 52 he wants clause things you have jurisdiction to issue some sort of relief is conditioned on either e2 or e3 those conditions being met It's a one of those conditions for a systemic facial type challenge like that space by blank is here You bring it within 60 days and on that point.

[00:33:12] Speaker 03:
Also, I take the point that

[00:33:14] Speaker 03:
I know we're putting aside the precedent and the brief treatment of it in ALA, but every district court that has faced this exact argument also.

[00:33:22] Speaker 03:
Equitable tolling, the sea is shifting on whether jurisdiction can be a loose or a tight word on a Supreme Court.

[00:33:28] Speaker 03:
Degender, LLM, Dugdale, which we cited in our briefs, all address this.

[00:33:32] Speaker 03:
Degender, I think, is the most careful and thorough and also most recent decision.

[00:33:37] Speaker 03:
It's just from last year from Judge Mehta that goes through all these points and makes many of the same arguments I'm making here.

[00:33:44] Speaker 03:
And so at the end of the day, it is still a jurisdiction provision.

[00:33:47] Speaker 03:
You have precedent on that from the big circuit.

[00:33:51] Speaker 03:
And that's just how the courts have been applying it.

[00:33:53] Speaker 03:
And I don't know that there's enough here to just get us in that at this point, at least to say that the district court got this wrong.

[00:33:59] Speaker 03:
I'm out of time if there are no other questions.

[00:34:02] Speaker 03:
Thank you, Alex.

[00:34:04] Speaker 04:
Thank you for your submission, Mr. Rivani.

[00:34:09] Speaker 04:
Ms.

[00:34:10] Speaker 04:
Haller, we'll give you three minutes for rebuttal, please.

[00:34:12] Speaker 02:
Thank you.

[00:34:13] Speaker 02:
Chief Judge, I'd like to start on the point that you were raising with Mr. Rubeni.

[00:34:16] Speaker 02:
And obviously, I would agree that this statute doesn't meet the high bar to be considered a jurisdictional deadline.

[00:34:26] Speaker 02:
But even if it is, and I think this is a really important point that should not be lost, the District Court in ALA held that a statutory guideline that's jurisdictional, you can't apply Rule 15.

[00:34:37] Speaker 02:
There can be no relation back.

[00:34:39] Speaker 02:
I question as to whether or not that's the law.

[00:34:42] Speaker 02:
The two cases cited in the district court decision and a law lamb versus United States Postal Service and resolution trust court versus Olson aren't on point.

[00:34:52] Speaker 02:
In fact, lamb, the court actually performs an analysis as to why the rule 15 applied and, and, and, and found that this did apply.

[00:35:01] Speaker 02:
And I believe in that case ended up not accepting the amendment for other reasons, but at least went through the rule 15 analysis.

[00:35:07] Speaker 02:
More importantly, the fifth and seventh circuits have held

[00:35:11] Speaker 02:
that a jurisdictional requirement is satisfied by the timely filing of a suit, and Rule 15 can still apply.

[00:35:18] Speaker 02:
And that's Wadsworth, the United States Postal Service, 511F2nd, 64, 7th Circuit, 1975, and Watkins B. Lujan, 922F2nd, 261, 5th Circuit, 1991.

[00:35:35] Speaker 02:
So anyway you cut it, the District Court erred in not conducting the Rule 15 analysis

[00:35:41] Speaker 02:
As to whether or not the claims made by the plaintiffs in the second amended complaint were laid back and also the same analysis for the plaintiffs who attempted to join the litigation.

[00:35:55] Speaker 02:
There are two other points I just want to address that Mr. Rubeni addressed.

[00:35:59] Speaker 02:
Mr. Rubeni talked about the fact that, you know, this is a review that you have to give great deference to the court on when it comes to unwritten policies and procedures.

[00:36:08] Speaker 02:
It's not.

[00:36:10] Speaker 02:
This is a de novo review about what the law is.

[00:36:13] Speaker 02:
The district court itself conceded and admitted that the facts amassed by the plaintiffs are deeply troubling.

[00:36:20] Speaker 02:
The district court suggested there are unwritten policies and procedures.

[00:36:23] Speaker 02:
There wasn't a finding that there weren't.

[00:36:26] Speaker 02:
The finding by the district court was that the unwritten policies and procedures cannot be reviewed under the relevant statute.

[00:36:32] Speaker 02:
Not that they don't exist.

[00:36:33] Speaker 02:
That's something the district court didn't

[00:36:35] Speaker 02:
And Mr. Rivani's suggestion that our unwritten policies and procedures weren't good enough, weren't egregious enough to rise to the level worthy of review is just not the district court's decision.

[00:36:45] Speaker 02:
And that's a question of fact the district court has to address and is required to accept the allegations in the second amended complaint.

[00:36:52] Speaker 02:
And there are many about the universal application of unwritten policies and procedures.

[00:36:57] Speaker 02:
And lastly, the cases cited by Mr. Rivani to this court and in the brief

[00:37:02] Speaker 02:
that say can't review unwritten policies and procedures in ALA and LMM, they're all talking about E3.

[00:37:11] Speaker 02:
We're not.

[00:37:12] Speaker 02:
The plaintiff's argument is that 1252A2A4 from the get-go does not strip this court of jurisdiction to review unwritten policies and procedures.

[00:37:22] Speaker 02:
And whether the court accepts that adoption couldn't have meant unwritten or that defendant Cuccinelli could not have adopted unwritten or written,

[00:37:31] Speaker 02:
This has to get remanded back to the district court and reverse.

[00:37:35] Speaker 02:
If there are no more questions.

[00:37:37] Speaker 04:
Thank you, counsel.

[00:37:38] Speaker 04:
Thank you to both councils.

[00:37:39] Speaker 04:
We appreciate your submissions.

[00:37:41] Speaker 04:
The case is submitted.

[00:37:42] Speaker 02:
Thank you.